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ELCAllowedNot stated in the judgment (Notice of Motion dated 10.03.2026)

Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2025) [2026] KEELC 1862 (KLR)

High Court of Kenya
24 March 2026
2,729 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The High Court paused collection of a multi-million-shilling judgment until an appeal is heard, but only if half the money is deposited in a joint escrow account within 60 days.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 10 March 2026, brought by the Appellants under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking stay of execution of a judgment and decree of the lower court dated 12 February 2026, in which the Appellants were ordered to pay the Respondent Kshs. 4,575,000 for loss of assets and Kshs. 5,773,710 for loss of income, plus costs. The Appellants contended they had filed an arguable appeal, would suffer substantial loss, and that the monies were public funds. The Respondent opposed, asserting a lawful judgment, entitlement to the fruits thereof, the absence of reasonable grounds of appeal, and its own capacity to refund the decretal sum if the appeal succeeded. The court framed two issues: whether the conditions for stay of execution pending appeal were established, and what security should be provided. Applying Order 42 Rule 6, the court found the application filed timeously; that the memorandum of appeal raising, among other things, the jurisdiction of the lower court, constituted sufficient cause; and that substantial loss was likely, since the Respondent, who bore the burden under Section 112 of the Evidence Act of proving its claimed means to refund, tendered no bank statements. The court held that the quantum of security is for the court, not the parties, and that the right of appeal under Article 48 must be balanced against the decree holder's rights. The application was allowed with an order of stay pending appeal, conditional on the Appellants depositing half the decretal sum in an escrow account within 60 days, failing which the stay lapses. Costs were made to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appellants have established the conditions to warrant the grant of an order of stay of execution pending appeal or otherwise
  2. 2.The security [if any] to be provided in the event of grant of an order of stay of execution

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The application was timeously filed; judgment was delivered on 12.02.2026 and the application filed on 10.03.2026

Reasoning

The court compared the date of delivery of the impugned judgment with the date of filing the application and concluded the interval disclosed no unreasonable delay, satisfying Order 42 Rule 6(2)(a).

p. 3
02

Whether the Appellants demonstrated sufficient cause

Holding

The filed memorandum of appeal raising arguable issues, including jurisdiction of the lower court, constituted sufficient cause

Reasoning

The court held that a prima facie appeal - one meriting interrogation, not one that must succeed - suffices as sufficient cause, adopting the meaning of the phrase from Wachira Karani v Bildad Wachira as requiring absence of negligence or inactivity.

p. 3
03

Whether the Appellants demonstrated substantial loss

Holding

Substantial loss established; the decretal sum is substantial and the Respondent did not prove capacity to refund

Reasoning

The Respondent claimed capacity to refund the decretal sum but, that means being peculiarly within its knowledge, bore the burden of proving it under Section 112 of the Evidence Act. No bank statements were tendered, so no proof of means existed, and the court found a likelihood of substantial loss.

p. 4
04

What security, if any, should be provided

Holding

Security of half the decretal sum deposited in an escrow account in the names of the parties' advocates, operationalized within 60 days, failing which stay lapses

Reasoning

The court balanced the judgment creditor's right to the fruits of the judgment against the appellant's constitutional right of appeal (Article 48), following Gitahi v Warugongo on even-handed security. The quantum must be fair and reasonable and not negate the right of appeal.

p. 5

Legal principles established

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  • An applicant for stay of execution pending appeal must establish four conditions: sufficient cause, timeliness, substantial loss, and security
  • The existence of a genuine and arguable appeal constitutes sufficient cause
  • Substantial loss is the cornerstone of granting stay and is loss not readily compensable in monetary terms
  • The determination of the quantum of security belongs to the court, not the parties

Court orders

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  1. 1.The Application dated 10.03.2026 be and is hereby allowed
  2. 2.An order of stay of execution of the judgment and decree of the lower court dated 12th February 2026, pending the hearing and determination of the appeal
  3. 3.The Appellants shall provide security by depositing half the decretal sum in an escrow account in the names of the advocates for the respective parties, to be opened and operationalized in the names of the Honourable Attorney General and learned counsel for the Respondent
  4. 4.The escrow account shall be opened and operationalized within 60 days from the date of the order
  5. 5.In default of compliance, the orders of stay shall lapse and the Respondent shall be at liberty to execute the decree
  6. 6.Costs of the Application shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Lower court (not named in the judgment)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap. 21); inherent jurisdiction of the court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There be and is hereby granted an order of stay of execution of the judgment and the decree of the lower court dated 12th February, 2026, pending the hearing and determination of the appeal.
p. 5final orders - stay of execution granted
The Appellants herein shall provide security by depositing half the decretal sum in an escrow in the names of advocates for the respective parties.
p. 5final orders - security
In default by the Appellants to comply with the said directions, the orders of stay shall lapse and the Respondent shall be at liberty to execute the decree of the lower court.
p. 6final orders - default clause
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay.
p. 4substantial loss (quoting Kenya Shell Ltd v Benjamin Karuga Kibiru)
The aim is to make sure, in an even-handed manner that the appeal will not be prejudiced and that the decretal sum is available if required.
p. 5security (quoting Gitahi v Warugongo)
Costs of the Application shall abide the outcome of the appeal.
p. 6costs

Issues in the judgment

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minor

Application described as filed 10.03.2026 but supporting supplementary affidavit elsewhere dated 23.02.2026, predating the application and the judgment

minor

Paragraph 15 cites Order 42 Rule 6[2][b] for both the substantial-loss condition and the security condition, though the security condition is usually under Rule 6(2)(c)

minor

Party names are not given in the judgment; parties are referred to only as Appellants/Applicants and Respondent, with the deponent Hamid Mohammed identified

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2025) [2026] KEELC 1862 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 10.03.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1862/eng@2026-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.